INTERLOCUTORY JUDGMENT OF PARTITION BY SALE
This is a fascinating example of an Interlocutory Judgement of Partition by Sale which has been provided through the kindness of David B. Nemer, an attorney who is an expert in partition actions and who practices in San Francisco. This is the Interlocutory Judgment that was used in the "Lonely San Francisco Victorian" example which you can read here. In this case, there were a great number of fractional owners of the property. Fractional ownership was the result of the property passing through several estates without any of them being probated or administered as a trust asset. Thus, the laws of intestate succession determined the ownership in each instance. The situation was further complicated because a number of the individuals who were entitled to intestate interests by statute, also died without probates so that their interests in turn were also distributed by intestate succession. This fractionalization is evident from the manner in which the defendants were designated in the caption. Note the recitation of the amounts of the fractional interests in the judgment. Their interests are properly characterized as tenancies in common. Note also that calculating these fractional interests presented a considerable challenge to Mr. Nemer who had to construct a family tree, determine the sequence of deaths within these individuals, and apply the laws of intestate succession in each instance. Finally, note that all but a few of the tenants in common defaulted after being served with the partition complaint. An interesting aspect of this case was that the title company was reluctant to issue title insurance on the sale because they could not be sure first that the named distributees were who they purported to be until social security numbers were provided, and second, whether any of the distributees had judgment liens recorded against them in any of the California counties. To solve these problems, Mr. Pecherer negotiated an arrangement with the title company whereby the title company retained all of the proceeds of the sale in an interest bearing account until the identities were confirmed and the records searched for liens. Much of this was accomplished by Mr. Pecherer. That process took about six months. Once it was completed, an order of distribution was obtained and the funds distributed in conformity with the percentages set out in the Interlocutory Judgment. Here again, the benefit of close coordination with a title company and a knowledgeable title officer is illustrated. All of the basic components of an Interlocutory Judgement of Partition by Sale are present, including the designation of the Referee, the instructions to the Referee regarding the property and the sale.
DAVID B. NEMER, JR. (No. 66975)
44 Montgomery Street, Ste. 2500
San Francisco, California 94104
Telephone No. (415) 391-1070
Facsimile No. (415) 393-8087
Attorney for Plaintiff DOROTHY MARKS JOHNSON
SUPERIOR COURT OF CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO
This action for partition came on regularly for trial on October 7, 2002, in the above-entitled court; DAVID B. NEMER, JR., Attorney at Law, appearing on behalf of plaintiff DOROTHY MARKS JOHNSON; DOMINIC R. LIBONATI, and MALLETTE and LIBONATI, Attorneys at Law, appearing on behalf of the successors of Defendant CHARLES BELFREY; THELMA ELLIOTT, PAUL WILLIE, DOUGLAS WILLIE, JAMES WILLIE, GILBERT WILLIE, BETTY ANN WILLIE JOHNSON, BOBBY WILLIE, EUGENE BROCKETT, WARREN LEE BROCKETT, GLORIA BROCKETT, SHIRLEY BROCKETT, CHARLES BROCKETT, JOANN PORTER WILLIAMS, LARRY PORTER, KEITH PORTER, MILDRED PORTER, KARL PORTER, GWEN PORTER, LUCIOS PORTER, the testate and intestate successors of HELEN BUTLER, deceased, the testate and intestate successors of LEONARD BELFREY, deceased, the testate and intestate successors of PAULINE WILLIE, deceased, the testate and intestate successors of ESSIE LEE BROCKETT, deceased, the testate and intestate successors of LUCILLE PORTER, deceased, all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint, all having been properly served with the summons and complaint, having failed to appear and to answer the complaint within the time prescribed by law, and the defaults of said defendants having been duly-entered; the court having heard and considered the evidence, both oral and documentary, and the argument of counsel, the matter having been submitted for decision, a statement of decision having not been requested, and good cause appearing therefor, the Court enters its interlocutory judgment of partition, as follows, IT IS HEREBY ORDERED, ADJUDGED and DECREED that: 1. The subject of this action is the real property (hereinafter referred to as "Real Property") located in the City and County of San Francisco, State of California, commonly known as 2905 Bush Street, San Francisco, California, and more particularly described as follows: 2. The owners of the fee simple interest in the Real Property are, as follows: Name Percentage of Ownership: DOROTHY MARKS JOHNSON 16.3265 THELMA ELLIOTT 16.3265 ADELA BELFREY 5.4422 JOSEPH BELFREY 1.3606 CHARLES BELFREY, JR. 1.3606 BENJAMIN BELFREY 1.3606 EARL BELFREY 1.3606 TINA BELFREY 1.3605 OLIVIA BELL 1.3605 NORMA GALVEZ 1.3605 MERCEDES ORTEZ 0.4535 SALENA ORTEZ 0.4535 FRANK ORTEZ, JR. 0.4535 PAUL WILLIE 2.7211 DOUGLAS WILLIE 2.7211 JAMES WILLIE 2.7211 GILBERT WILLIE 2.7211 BETTY ANN WILLIE JOHNSON 2.7211 BOBBY WILLIE 2.7211 EUGENE BROCKETT 3.2653 WARREN LEE BROCKETT 3.2653 GLORIA BROCKETT DONALDSON 3.2653 SHIRLEY BROCKETT FOSTER 3.2653 CHARLES BROCKETT 3.2653 KARL PORTER 5.4422 JOANN PORTER WILLIAMS 2.1769 LARRY PORTER 2.1769 KEITH PORTER 2.1769 MILDRED PORTER HARRIS 2.1769 GWEN PORTER 1.0884 LUCIOS PORTER 1.0883 AIL BREWSTER BEREOLA 0.2268 MICHELE BREWSTER 0.2268 JACQUELINE BREWSTER 0.2268 MICHAEL BREWSTER 0.2268 PAULETTE BREWSTER 0.2268 TAMI THOMAS 0.2267 ALBERT BREWSTER 0.2267 DEMETRIOUS BREWSTER 0.2267 BELINDA BREWSTER 0.2267 Total 100.0000 3. The Real Property is subject to the following encumbrances: None. 4. The interest in the Real Property of CHARLES BELFREY, JR., as set forth above, is subject the lien of a judgment for child, family, or spousal support, in the matter of Russell v. Belfrey, San Francisco Superior Court No. 721127, recorded Septemberber 13, 1985, as Document No. D692347, at Reel D919, Page 1046. Said lien shall be paid solely from the interest of CHARLES BELFREY, JR., in the Real Property. 5. Sale of the Real Property and division of the net proceeds of sale is more equitable than division of the Real Property in kind. 6. The Real Property shall be sold and the net proceeds of sale applied in accordance with the provisions of Paragraph 11 below. 7. MICHAEL S. PECHERER, Attorney at Law, 2005 Mt. Diablo Blvd, Walnut Creek, California 94596, is appointed referee with authority to sell the Real Property at private sale, to the highest and best net bidder, subject to confirmation of the Court, which manner of sale is hereby determined to be most beneficial to the parties. Notice of sale shall be given in the manner required for notice of sale specified in California Code of Civil Procedure Sec. 873.640 and shall be given to the persons specified in California Code of Civil Procedure Sec. 873.640. In all other respects the sale shall be conducted as provided in California Code of Civil Procedure Sec. 873.600-873.690. No bond shall be required of the referee until such time as the sale of the Real Property is confirmed by the Court. 8. The referee shall have the authority to enter upon the Real Property; to inspect the Real Property; to evict any person or persons residing in the Real Property; to borrow money to repair the Real Property for sale and to repay any money borrowed, together with interest at five (5%) percent simple interest per annum, from the net proceeds of sale of the Real Property; to engage the services of inspectors and experts and to pay for the same from net proceeds of sale of the Real Property; and to enter into an exclusive listing agreement with a duly licensed realtor in the State of California for the sale of the Real Property, provided that the realtor's commission does not exceed six (6%) percent of the sale price and the term of the exclusive listing agreement does not exceed ninety (90) days. 9. The Real Property shall be sold on an "as is" basis, without any warranty, express or implied, except as to title. The sale is subject to current taxes, covenants, conditions, restrictions, reservations, rights, rights of way, existing tenancies, and easements of record. Any encumbrances of record shall be satisfied out of the proceeds of sale. The Real Property shall be sold for cash. Real property taxes, rents, operating and maintenance expenses, and premiums on insurance acceptable to the purchaser shall be prorated as of the date of recording the conveyance. Examination of title, recording of the conveyance, notary fees, escrow fees, tax service fees, any fees for any reports and/or inspections, and any title insurance policy shall be at the expense of the purchaser or purchasers. Escrow shall close within thirty (30) days after the date of confirmation of sale by the Court. 10. The referee, after selling the Real Property shall report to the Court on the sale proceedings, and, upon confirmation of the sale by the Court and payment of the purchase price, is authorized to execute and deliver a deed to the Real Property to the purchaser. 11. The proceeds of the sale of the Real Property shall be applied, as follows: A. To pay the fees and expenses of the referee and of his attorney, if any; B. To pay the expenses of sale; C. To pay the costs of partition or to secure any cost of partition later allowed; D. To reimburse plaintiff DOROTHY MARKS JOHNSON for the cost of the litigation guarantee in the sum of $500.00; E. To pay the attorney's fees and costs of plaintiff DOROTHY MARKS JOHNSON in an amount to be determined by the Court upon motion; F. To pay the attorney's fees and costs of the successors of defendant CHARLES BELFREY in an amount to be determined by the Court upon motion; and G. To distribute the residue among the owners of the Real Property in proportion to their percentage ownership interests in the Real Property as set forth in Paragraph 2 above and giving effect to Paragraph 4 above. 12. The Court shall retain jurisdiction of the above-captioned matter to confirm the sale of the Real Property and to review the report of the referee, and to order equitable adjustments that the Court considers just and appropriate.
______________________________ JUDGE OF THE SUPERIOR COURT
Case No. 319436
INTERLOCUTORY JUDGMENT OF
DOROTHY MARKS JOHNSON,
THELMA ELLIOTT; CHARLES BELFREY;
PAUL WILLIE; DOUGLAS WILLIE; JAMES
WILLIE; GILBERT WILLIE; BETTY ANN
WILLIE JOHNSON; BOBBY WILLIE;
EUGENE BROCKETT; WARREN LEE
BROCKETT; GLORIA BROCKETT; SHIRLEY
BROCKETT; CHARLES BROCKETT; JOANN
PORTER WILLIAMS; LARRY PORTER;
KEITH PORTER; MILDRED PORTER; KARL
PORTER; GWEN PORTER; LUCIOS
PORTER; the testate and intestate
successors of HELEN BUTLER,
deceased, and all persons claiming by, through,
or under such decedent; the testate and intestate
successors of LEONARD BELFREY, deceased,
and all persons claiming by, through, or under
such decedent; the testate and intestate successors of PAULINE WILLIE, deceased, and all persons claiming by, through, or under such decedent; the testate and intestate successors of
ESSIE LEE BROCKETT, deceased, and all persons claiming by, through, or under such decedent; the testate and intestate successors
of LUCILLE PORTER, deceased, and all
persons claiming by, through, or under
such decedent; all persons unknown, claiming
any legal or equitable right, title, estate, lien, or
interest in the property described in the complaint;
and DOES 1 to 100, inclusive
Beginning at a point on the Southerly line of Bush Street, distant thereon 43 feet Westerly from the Westerly line of Lyon Street; running thence Westerly along said Southerly line of Bush Street 25 feet, 9 inches; thence at a right angle Southerly 107 feet, 6 inches; thence at a right angle Easterly 25 feet, 9 inches; thence at a right angle Northerly 107 feet, 6 inches to the Southerly line of Bush Street and the point of beginning.
Being a portion of Western Addition Block No. 619.
Commonly known as 2905 Bush Street, San Francisco, California.
Assessor's Parcel No. 8-1055-23.